Who owns open knowledge? The two types of licence to consider when making books open access

As more open access books are being published, greater attention is being paid to the implications of different types of open licence and what the consequences of using them are. Sometimes an author requests a specific licence; sometimes their funder mandates the licence; and sometimes their publisher advises (or insists) on the licence to be used.

But when a more restrictive open licence is applied to a book, who gets to make decisions about usage that falls outside the open licence?

How open licensing works

When a book (or article) is made available open access, this is signalled by the application of an open licence to the work. This tells the reader how they can use the book without asking permission of the copyright holder. There are different open licensing systems, but the most commonly used in academia is Creative Commons.

There are a range of Creative Commons licences. Some are very permissive – for example, a CC BY licence means that the book can be freely shared, remixed and reused in any way in whole or in part, including derivative works (e.g. translations) or for commercial gain, all without asking permission from the copyright holder, as long as the original work is fully credited. Some are more restrictive: for example, a CC BY-NC-ND licence means that the book can be freely shared with attribution, but the book cannot be used commercially (NC = Non-Commercial) nor can derivatives be made (ND = No Derivatives) unless prior permission is sought from the copyright holder.

So if a more restrictive open licence, such as CC BY-NC-ND, is applied, then the decision about whether or not to give permission for those restricted types of reuse and what conditions to set (e.g. whether or not to charge a fee) lies with the author as copyright holder, correct?

Not necessarily. This is where the other type of licence comes in.

The licence to publish

When an author signs a contract with a publisher, they typically retain their copyright but they give the publisher a licence to publish their book, and both parties agree to various terms. Some publishers, including Open Book Publishers, allow the author to retain the right to make decisions about whether and how to grant permission for types of reuse that aren’t automatically permitted by the open licence.

Other publishers might require other terms. For example, they might require that the author gives them the right to make decisions about reuse that doesn’t fall under the open licence. So if you’ve used a CC BY-NC-ND licence to make your book open access, but you’ve signed a contract that gives your publisher the right to decide on permissions for commercial or derivative reuse, your publisher will be the one saying yes or no to the request, setting the price or other conditions, and most likely collecting the income.

So, is CC BY the answer?

Because the relationship between these two types of licensing is not well understood, authors, funders, or librarians can be taken aback if they find that, for example, a publisher is making income from selling commercial rights to a CC BY-NC-ND book. One solution, it has been suggested, is for all open access work to be maximally reusable under a CC BY licence and for this to be insisted upon as a condition of funding. (Indeed, some open access advocates maintain that any licence more restrictive than CC BY is not really open access at all, and that maximal openness should always be the aim.)

However, some authors are unhappy with the idea of applying a CC BY licence to their book. They might be uncomfortable with it being broken down and reused in part only, or translated without their permission; or they might not want commercial use to be made of their work (or they might want to be paid if this occurs). CC BY books have also been resold at high volume by commercial outfits that take the content and sell it at an expensive price, as in the case of Saint Philip Street Press. If third-party content within these books (such as images or extensive quotations) is not openly licensed, it is stripped out by the reselling ‘press’, so that these expensive closed versions of CC BY books are inferior to the version the author made openly available. This is completely legal under a CC BY licence, because the ‘press’ in question credits the original book each time – which is the only condition required by the CC BY licence.

The point here is not to argue that the CC BY licence should not be used, but that it comes with its own complications. If it is used because the author understands how it works and wants it for their book, then a CC BY licence should be applied (or at least this is the approach we take at Open Book Publishers). But as a solution to the problem discussed in this blog post, it is the wrong remedy.

What is the solution?

Ideally, the author should understand the contract they are signing with their publisher, and advocate for the rights they want to retain. For example, if they want to licence their book CC BY-NC-ND (or they are being advised to do so by their publisher), but they also want to retain the right to make decisions over use that is not permitted by that licence, this should be stipulated in their contract.

However, such conversations with publishers are not always straightforward. Libraries can support their academic authors with this process by raising awareness about this issue and sharing examples of the language the author should ask to be used in their contract. In case it is helpful, the language we use in our contracts with authors at OBP is shared at the end of this post.

This problem was also discussed by my colleague Rupert Gatti in a 2021 blog post, where he argued that some form of rights retention clause – similar to the approach now often taken with journal articles – might be a useful strategy:

[In order for the author to retain control of these rights], the copyright assignment and reuse controls have to be assigned to the author within the publication contract signed by the author, and thus some form of Rights Retention Clause needs to be included. Without an explicit presubmission funder mandate, authors alone are unlikely to have sufficient bargaining power to ensure the inclusion of such a clause in the publishing contract they sign.

In journal publishing, this approach gained ground because, over time, universities and other organisations recognised the problem and began to discuss a coordinated solution. Similar discussions, informed by an understanding of the significant differences between journal and book publishing, are now needed for books.

Sample language used in OBP’s standard contract with authors:

The Author grants the Publisher the non-exclusive rights to sell and distribute hard copies of the Work in the original language in which the Work is published and to make copies of the Work available by electronic means anywhere in the world. The Work shall be published under a Creative Commons licence which will be clearly stated in the front matter therein.

The Author shall retain the copyright on the Work and the rights to publish it for both commercial and non-commercial purposes. The Author shall not require permission from the Publisher for any subsequent publication of the Work including holding it in repositories, creating derivative works and reproducing, distributing, publicly performing, and publicly displaying the Work in connection with the Author’s teaching, conference presentations, lectures, other scholarly works and/or professional activities. The Author shall not require permission from the Publisher to make digital editions of the Work freely available to read or download from any other platform, including the Author’s personal website.